F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 28 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
AMY BANKS,
Plaintiff-Appellant,
v. No. 04-3125
(D.C. No. 02-CV-4159-RDR)
THE ARMED FORCES BANK; (D. Kan.)
DICKINSON FINANCIAL CORP., (313 F. Supp. 2d 1095)
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Amy Banks challenges the district court’s grant of summary judgment to
Armed Forces Bank (AFB) in this employment discrimination case. 1
We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court summarized the facts underlying this action in its
comprehensive memorandum and order. See Banks v. Armed Forces Bank , 313
F. Supp. 2d 1095, 1097-99 (D. Kan. 2004). For purposes of this appeal, the most
relevant facts are that an AFB human resources employee initially (and
erroneously) told Ms. Banks in early April 2002 that she could use intermittent
leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. ,
to care for her newborn during the summer. Approximately two weeks later, AFB
informed her that its policy did not allow such use of FMLA leave. When
Ms. Banks stated that she had a problem, in that she had already arranged for
child care based on an intermittent working schedule and she could not obtain
full-time child care for the summer, AFB offered her the opportunity to work a
thirty-hour schedule instead of continuing at forty hours per week. AFB refused
to make the change seasonal, however, and it indicated that, if she chose the
thirty-hour schedule, it would be her permanent schedule. After considering her
options, Ms. Banks opted for the thirty-hour schedule. About five weeks after
1
Ms. Banks has abandoned her appeal of the judgment in favor of Dickinson
Financial Corporation. Aplt. Br. at 2.
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starting that schedule, she resigned to take a full-time position with another
company.
Ms. Banks contends that AFB violated Title VII, 42 U.S.C. § 2000e et seq. ,
by constructively discharging her in retaliation for certain complaints of
discrimination. She argues that AFB’s failure to honor the initial representations
regarding the availability of intermittent FMLA leave and AFB’s making her
thirty-hour schedule a permanent change rather than a seasonal adjustment
constituted a constructive discharge. The district court held this claim precluded
because it was not included in the pretrial order. Banks , 313 F. Supp. 2d at 1103.
Ms. Banks does not appeal this determination, and thus she has waived
consideration of this issue. See Tran v. Trustees of State Colleges , 355 F.3d
1263, 1266 (10th Cir. 2004). 2
Ms. Banks next argues that AFB violated the FMLA by failing to provide
her intermittent leave to care for her child. Although neither the FMLA nor
AFB’s FMLA policy required AFB to offer Ms. Banks intermittent leave in these
2
The district court further determined that, even if the Title VII retaliation claim
were preserved, it would be proper to grant summary judgment because, among
other reasons, AFB did not commit any “adverse employment actions” against
Ms. Banks, as required for a claim of retaliation. Banks , 313 F. Supp. 2d at
1103. We find no error in this decision. As discussed below in connection with
Ms. Banks’ FMLA retaliation claim, Ms. Banks has neither shown that she was
treated differently than other employees with regard to intermittent leave nor that
her working conditions were so intolerable as to constitute a constructive
discharge.
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circumstances, 29 C.F.R. § 825.203(b); Aplee. Br. at 6-7; Aplt. App. at 63, she
contends the initial representations about the availability of leave equitably
estopped AFB from enforcing its policy against her. The district court disagreed.
This court has not yet determined whether equitable estoppel applies in a
FMLA action. Other courts, however, have recognized that employers may be
equitably estopped from denying employees FMLA benefits under certain
circumstances. See Duty v. Norton-Alcoa Proppants , 293 F.3d 481, 493-94 (8th
Cir. 2002) (applying equitable estoppel where employer guaranteed employee
certain period of FMLA leave, and employee relied on the representation by not
returning to work until after end date designated by employer); Kosakow v. New
Rochelle Radiology Assoc., P.C. , 274 F.3d 706, 722-27 (2d Cir. 2001) (applying
equitable estoppel to issue of employee’s eligibility where employer did not notify
employee that she must work 1,250 hours to be FMLA-eligible and employee
could have worked the necessary hours before taking leave); see also Woodford v.
Comm. Action of Greene County, Inc. , 268 F.3d 51, 57 (2d Cir. 2001) (discussing,
in dicta, potential availability of equitable estoppel); Dormeyer v. Comerica
Bank-Ill. , 223 F.3d 579, 582 (7th Cir. 2000) (same). In the circumstances of this
case, however, we are not persuaded the district court erred in refusing to apply
equitable estoppel to Ms. Banks’ FMLA claim, especially given that Ms. Banks
was correctly informed about AFB’s policy and her options well before the
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beginning of her requested leave. Cf. Pharakhone v. Nissan N. Am., Inc. , 324
F.3d 405, 408 (6th Cir. 2003) (“[Plaintiff’s] testimony demonstrates, at most, that
[his supervisor’s] silence led [plaintiff] to decline assistance that later turned out
to be necessary. . . . [T]he FMLA, in our opinion, was not designed to afford
relief in such a situation.”).
Finally, Ms. Banks argues that AFB violated the FMLA by constructively
discharging her in retaliation for her request to take FMLA leave. To establish a
constructive discharge, Ms. Banks must show that AFB “‘made working
conditions so difficult that a reasonable person in the employee’s position would
feel compelled to resign.’” See Sandoval v. City of Boulder , 388 F.3d 1312, 1325
(10th Cir. 2004) (quoting Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 534 (10th
Cir. 1998)). “‘Essentially, a plaintiff must show that she had no other choice but
to quit. The conditions of employment must be objectively intolerable; the
plaintiff’s subjective views of the situation are irrelevant.’” Id. (quoting Sanchez ,
164 F.3d at 534). “If an employee resigns of her own free will, even as a result of
the employer’s actions, that employee will not be held to have been constructively
discharged.” Jeffries v. State of Kan. , 147 F.3d 1220, 1233 (10th Cir. 1998).
As discussed above, neither the FMLA nor AFB’s FMLA policy required
AFB to grant Ms. Banks intermittent leave. Also, there is no indication that AFB
allowed other employees to take intermittent FMLA leave under similar
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circumstances. Aplt. App. at 63. The record does not show that AFB changed
Ms. Banks’ duties, responsibilities, or benefits in any significant manner other
than the reduction in hours. AFB gave Ms. Banks time to consider her options
and discuss them with her husband, and it did not require her to take the thirty-
hour schedule; if she had found adequate daycare, she could have continued with
her forty-hour schedule. Id. at 67-68. We cannot conclude that offering Ms.
Banks the fully voluntary choice of continuing her forty-hour schedule or taking a
thirty-hour schedule, in order to accommodate her family’s needs, creates such
intolerable working conditions as to constitute a constructive discharge.
The judgment of the district court is AFFIRMED .
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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